First Amendment issues remain open in net neutrality ruling

Legal scholars and business leaders alike are still sifting through an appeals court ruling that strikes down much of the FCC’s power to bar Internet service providers from discriminating against information providers.

But one issue the three-judge panel didn’t tackle was a First Amendment claim made by Verizon that it had a constitutional right to pick and choose how it offers “edge services” like Netflix, YouTube and news websites to its customers.

Instead, the U.S. Court of Appeals for the District Columbia said that the FCC didn’t have the authority, based on its own past rules, to force Internet service providers to obey anti-blocking and anti-discrimination regulations.

The court said the FCC could set general guidelines for Internet service providers; compel Internet service providers to disclose how they block or discriminate against services; and work with Congress to change how Internet service providers are classified, so the agency would have the ability to re-impose anti-blocking and anti-discrimination regulations.

The FCC is pondering an appeal.

The Verizon v. FCC Net Neutrality case has been widely watched since 2010, when then-FCC commissioner Julius Genachowksi led the FCC’s efforts to make sure Internet service providers like Verizon didn’t block or discriminate against services that competed with Verizon’s own content offerings.

Verizon cried foul, since the FCC’s policy decision seemed to contradict earlier court rulings. Verizon also said the ruling forced it to provide unlimited bandwidth to Internet video providers such as Netflix and YouTube, without compensation (as a Fifth Amendment Takings Clause violation). And Verizon also made a First Amendment argument about its freedom to promote and publish content as an information service provider.

The appeals court said that since it already decided that the FCC didn’t have the power to impose net neutrality policies on a business it had classified as an information service (and not a common carrier service), the judges didn’t need to tackle Verizon’s First Amendment case.

“Given our disposition of the latter issue, we have no need to address Verizon’s additional contentions that the Order violates the First Amendment and constitutes an uncompensated taking,” said Judge David S. Tatel.

“The Open Internet Rules are consistent with the First and Fifth Amendments. Internet access providers do not engage in speech; they transport the speech of others, as a messenger delivers documents containing speech. Unlike cable systems, newspapers, and other curated media, broadband providers do not exercise editorial discretion,” it said.

“Verizon has defended itself from lawsuits on that very ground. If the First Amendment applies at all, the Open Internet Rules are narrowly tailored to serve important government interests.”

Verizon said in its brief that it has free-speech rights due to the nature of its business.

“Broadband networks are the modern-day microphone by which their owners engage in First Amendment speech. The FCC thus must identify an actual problem, and narrowly tailor its solution to solve that problem,” Verizon argued.

“The First Amendment protects not only traditional speakers, but other participants in the ‘communication of ideas,” it said. “Broadband providers engage in and transmit speech, and the [FCC] rules—which limit broadband providers’ own speech and compel carriage of others’ speech—cannot survive scrutiny.”

Like Verizon, a group of scholars from Tech Freedom, the Competitive Enterprise Institute, the Free State Foundation, and the Cato Institute made a First Amendment argument in a brief filed with the appeals court.

“Courts have recognized that the First Amendment protects the editorial discretion of broadband providers in determining what content they transmit,” the group said, arguing that Verizon is engaging in protected free speech.

“A speaker’s freely made choice to transmit the messages of others is itself an exercise of First Amendment rights to control the content transmitted, and does not waive his right to determine the content he chooses to transmit in the future,” the group said.

Tim Wu from Columbia Law School, in a court brief, supported the FCC’s argument. (It was Wu who first used the term “net neutrality” in 2003.)

“Erasing the line between publishers and transmitters, by granting Verizon the First Amendment protections reserved for publishers, would break sharply with more than a century of historical practice, and have unpredictable consequences,” said Wu.

“The undisputed facts make clear that Verizon’s broadband business shares almost none of the characteristics that have led the Court to protect publishers as speakers. Unlike a newspaper or cable operator, in the course of operations, the firm lacks actual knowledge of what it presents its audience: it has only a vague sense of what information it is making available to its customers,” he said.

For now, the First Amendment argument about net neutrality remains academic, as the FCC and Verizon ponder their options in coming weeks.